Utah Lawmakers Call for Seventeenth Amendment Repeal

Published May 20, 2016

Utah lawmakers recently approved a resolution calling on Congress to ratify an amendment to the U.S. Constitution repealing the Seventeenth Amendment.

Ratified in 1913, the Seventeenth Amendment to the United States Constitution established direct election of U.S. senators by popular vote.  Before the amendment’s ratification, senators were elected by state legislatures.

The resolution, approved by the House of Representatives and sent to the state’s lieutenant governor for filing in March, was sponsored by state Sen. Alvin Jackson (R-Highland).

‘A Formal Check’
Todd Zywicki, a professor of law at George Mason University, says the Seventeenth Amendment removed a necessary safeguard against lobbyists and government’s own nature.

“The framers understood that, in order for the states to be protected from federal government overreach it was necessary to give the states a formal check,” Zywicki said. “That check was by allowing the states in their corporate political capacity, the state legislatures, to choose senators.

“The second aspect was that the Senate was to be a check on special-interest activity,” Zywicki said. “By having the Senate chosen by a different constituency than the House, that was designed to raise the level of consensus to enact legislation, making it more difficult for special interests to capture the government.”

Zywicki says repealing the Seventeenth Amendment is unlikely to happen, though.

“First, the tide of democracy is very strong and hard to stop, much less roll back.” Zywicki said. “Second, it would require a degree of understanding of the importance of constitutional structure that virtually none of the public or elected officials today could or would be willing to understand.”

Worth The Effort?
Ilya Somin, who is also a professor of law at George Mason University, says he disagrees with Zywicki.

“I am not opposed to repeal on principle, but I don’t think it’s worth the vast investment of political capital it would take, if it can be done at all,” Somin said. “Our efforts would be far better expended elsewhere.”

Overwhelming Odds
Somin says convincing people to support repealing the amendment is too difficult to be worth the effort and expense.

“The odds against almost any constitutional amendment are stacked, in the modern environment where the political system is highly polarized, and assembling an overwhelming supermajority, are very, very high,” Somin said. “In this case, you also have to overcome the widespread perception that repealing the amendment would be undemocratic.”

Somin says American partisan politics also prevents a successful repeal effort.

 “The passage of any amendment requires bipartisan support. Repeal of the 17th Amendment, so far, has attracted support almost exclusively among Republicans, and not even a strong majority of them. Unless and until it gets substantial Democratic support, as well, it has no chance of success.”

Matt Hurley ([email protected]) writes from Cincinnati, Ohio.